Loading...
HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 099 - Order On Mot Protective OrderIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 21-cv-02063-CNS-MEH CITY OF FORT COLLINS, Plaintiff/Counterclaim Defendant, v. OPEN INTERNATIONAL, LLC Defendant/Counterclaim Plaintiff, and OPEN INVESTMENTS, LLC, Defendant. ORDER ON MOTION FOR PROTECTIVE ORDER Magistrate Judge Michael E. Hegarty. Before the Court is Plaintiff City of Fort Collins’s (“Plaintiff” or the “City”) Motion for Protective Order to Require Defendants’ Compliance with the October 14, 2021 Stipulated Protective Order (the “Motion” or “Motion for Protective Order”). ECF 64. The Motion is fully briefed. For the following reasons, the Motion is denied. BACKGROUND This case arises out of a contractual dispute between the City and Defendants Open International, LLC and Open Investments, LLC (collectively, “Open”).1 See generally ECF 6. In 2018, the City and Open entered into a Master Professional Services Agreement and Software 1 Although there are two named Defendants in this case, the Parties routinely refer to Defendants as one entity. See, e.g., ECF 64; ECF 74. The Court does the same here. Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 1 of 14 2 License Agreement governing the implementation of a billing system for both existing utilities and a new broadband service (the “Project”). Id. at ¶¶ 18-19, 30. The Project did not proceed as anticipated, and on July 2, 2021, Plaintiff initiated this civil action in state court, asserting against Open claims of fraudulent inducement, breach of contract, and breach of the covenant of good faith and fair dealing, as well as a claim for declaratory judgment. See generally id. Open removed this case to federal court on July 30, 2021. ECF 1. Thereafter, the court held a scheduling conference, entered the Scheduling Order, and the parties began the discovery process. ECF 21; ECF 22. On October 14, 2021, the court entered the Parties’ Stipulated Protective Order. ECF 32. Relevant here, the Protective Order states as follows: Discovery in this Action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting and defending this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Protective Order. The Parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. Id. at § 1.1. The Protective Order provides that its protections “cover not only Protected Material . . . but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material.” Id. at § III. “Protected Material” is defined as any disclosure or discovery material that is designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – AEO,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” Id. at § 2.15. Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 2 of 14 3 The Protective Order provides that a Party receiving materials in discovery “may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this Action only for prosecuting, defending, or attempting to settle this Action,” and such documents may be disclosed “only to the categories of persons and under the conditions described in th[e] Protective Order.” Id. at § 7.1. The Protective Order limits the disclosure of items designated as “CONFIDENTIAL” to a limited number of specific parties. See id. at § 7.2. In its Motion for Protective Order, the City asserts that Open has used confidential documents obtained in discovery and covered by the Protective Order “outside of this litigation to make a [Colorado Open Records Act (“CORA”)] request to obtain ‘public versions’ and avoid the protections of” the Protective Order. ECF 64 at 1-2 (emphasis omitted). The City contends that this “use” of the materials outside of this litigation violates the Protective Order. Id. at 10-11. Moreover, the City maintains that orders of the court, including the Protective Order, “void the CORA request” pursuant to Colo. Rev. Stat. § 24-7-204(1)(c) and the Supremacy Clause in the United States Constitution. Id. at 2 (emphasis omitted). In response, Open argues that the Protective Order does not restrict its right to seek public records under CORA. ECF 74 at 1-2. Open further contends that the appropriate avenue for the City to challenge its CORA request is “a separate action instituted in state court, not through motion practice in pending litigation.” Id. at 2. With respect to the relief requested in the Motion, Plaintiff seeks a court order (1) directing “Open and its counsel [to] comply with the [Protective Order] and stop further improper use of Protected Material, including in the CORA request,” and (2) ordering “that the City’s compliance with the [Protective Order] supersedes any potential liability under CORA, pursuant to the Supremacy Clause which renders the CORA request void.” ECF 64 at 14. Plaintiff does not Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 3 of 14 4 suggest that the Protective Order must be modified or supplemented, nor does Plaintiff seek the imposition of sanctions for any alleged violations of the Protective Order. See generally id. The Court considers Plaintiff’s request and the Parties’ arguments below. LEGAL STANDARD Rule 26(c) of the Federal Rules of Civil Procedure provides that a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c). The party seeking a protective order bears the burden of establishing its necessity, Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 325 (10th Cir. 1981), but the entry of a protective order is left to the sound discretion of the court. Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008). The good cause standard is highly flexible, having been designed to accommodate all relevant interests as they arise. See id. However, “[c]onclusory or stereotypical assertions are insufficient to show good cause.” Exum v. U.S. Olympic Comm., 209 F.R.D. 201, 206 (D. Colo. 2002). ANALYSIS I. The Circumstances Giving Rise to the Motion for Protective Order Based on the Parties’ briefing and attached exhibits, the Court ascertains the non- exhaustive timeline of this dispute as follows: On May 16, 2022, Open’s counsel emailed counsel for the City and informed the City’s counsel that they intended to file a CORA request within three days unless the City “agree[d] to waive confidentiality over certain specified documents” listed in the email or if the City’s counsel would agree “to be the conduit for this request, instead of [Open] submitting [the request] to the City’s CORA portal directly.” ECF 64-5 at 2. According to Plaintiff, the listed documents “were the City’s internal OASIS Project Decision Record Memoranda, including drafts and pre-decisional deliberate material subject to protection under Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 4 of 14 5 common law governmental deliberative process privilege.” ECF 64 at 7-8. On May 18, 2022, the City responded that Open’s anticipated CORA request would violate the Protective Order’s process for challenging confidentiality designations and the Scheduling Order’s discovery limitations. ECF 64-7 at 2-3. The City informed Open that “[s]hould Open proceed with this CORA request, the City will seek a protective order requesting that Open utilize the proper discovery procedures.” Id. at 3. Open replied that its CORA request was proper, ECF 64-8 at 5, and submitted its CORA request to the City. Id. at 2. The City responded to the CORA request by stating, inter alia, that “[s]ince the production of the Requested Records is governed by the Scheduling Order and the Protective Order entered by a Federal Court, the City and its employees cannot provide them to you and your clients through this CORA request, which is the result authorized in C.R.S. Section 24-72-204(1)(c).”2 ECF 64- 9 at 2-3. Thereafter, Open informed the City of its intent “to apply to the [state] district court for an order directing the custodians to show cause why the custodians should not permit inspection of the records we requested,” ECF 64-10 at 1-2, which is the applicable procedure under CORA for challenging the denial of the right to inspect documents. See Colo. Rev. Stat. § 24-72- 204(5)(a).3 It appears that the instant Motion was filed in response to Open’s representation. II. Whether Open Violated the Protective Order by Submitting a CORA Request Plaintiff argues that Open violated the Protective Order, which prohibits the use of documents designated as confidential outside of this litigation, by “using” Protected Material as 2 This CORA provision contains an exception to the disclosure of documents if “[s]uch inspection is prohibited by rules promulgated by the supreme court or by the order of any court.” Colo. Rev. Stat. § 24-72-204(1)(c). 3 Open states that it is “holding its state court action in abeyance pending resolution of the City’s Motion.” ECF 74 at 7. It is unclear from the Parties’ briefing whether Open has actually filed a state court action challenging the CORA response. Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 5 of 14 6 the basis for its CORA request. ECF 64 at 7, 11. Specifically, the City asserts that Open “used [its] knowledge of the Produced Protected Material and the information contained therein” in submitting its CORA request. ECF 64 at 11 (emphasis omitted). The Court acknowledges the City’s emphasis on Open’s statement to the City that it would seek public disclosure of certain documents—accompanied by specific Bates numbers—if the City did not waive its confidentiality designations of those documents. See ECF 64-5 at 2. The City also points the Court to Open’s counsel’s email stating that “if Open can obtain the identified memoranda 4 through the CORA process, the memos could be used without restriction from the . . . Protective Order.” ECF 64-8 at 3 (footnote added); ECF 64 at 11. In addition, the City references Open’s statement to opposing counsel indicating that while counsel could presently not identify a basis to challenge Plaintiff’s confidentiality designations of the documents, “if someone can and does obtain the memos through an open-records request, at that point, the designation would be improper because a CORA production would show the memos are publicly available and not confidential.” ECF 64-8 at 3; ECF 64 at 11. But Open counters that it gained knowledge of the “Vanir memoranda,” i.e, more than a dozen final and draft memoranda prepared by Vanir employee Dr. Michelle Frey between December 2019 and March 2020, through its work on the Project – not discovery. Open also argues that the Protective Order does not “circumscribe a party’s use of its ‘knowledge of’ protected material,” but only precludes a party’s “‘use’ of the material itself.” ECF 74 at 10. Neither Party cites case law in support of its argument concerning what constitutes the “use” of Protected Material. See ECF 64; ECF 70. 4 The Court understands the “identified memoranda” to refer to the Bates-numbered documents listed in Open’s initial CORA-related email to the City. See ECF 64-5. Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 6 of 14 7 Protected Material. As explained above, the Protective Order provides that a Party “may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this Action only for prosecuting, defending, or attempting to settle this Action.” ECF 32 at § 7.1. As an initial matter, Open argues that it did not learn of the documents that it seeks from this litigation. Instead, it contends that as part of the Project, “the parties shared access to more than a dozen final and draft memoranda prepared by Vanir employee Dr. Michelle Frey between December 2019 and March 2020.” (“Vanir Memoranda”). ECF 74 at 3; ECF 74-1 at ¶ 5. The City disputes this characterization, and contends that “Open downloaded and ‘obtained’ the documents at issue five days after Open received a copy of the Complaint and actual notice of the litigation” and that “it had no authority or credential to access any of the City’s databases per the City’s termination of Master Professional Services Agreement (‘MPSA’).” ECF 84 (citing ECF 64-4). To the extent that the Parties seek a determination from this Court as to whether the Vanir Memoranda were obtained in violation of the MPSA, this Court declines to do so on the record before it. This Court will simply assume, without finding, that the Vanir Memoranda amount to Protected Material under the Protective Order. Use. The Protective Order does not define the term “use,” see generally id., and thus, the Court interprets the Protective Order according to its plain language. See S.E.C. v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (“The starting point for interpretation of a protective order lies in its plain language.”); Env’t Dimensions, Inc. v. Energysolutions Gov’t Grp., Inc., No. CV 16-1056 WJ/JHR, 2019 WL 5964585, at *2 (D.N.M. Nov. 13, 2019) (“[T]he court that entered the protective order has the power to construe it.”). Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 7 of 14 8 This Court has located a small number of cases construing the term “use” in the context of determining whether a party used confidential or protected documents outside of litigation in violation of a governing protective order. Notably, a number of courts have concluded that a party’s use of its knowledge that documents exist does not necessarily constitute the use of those documents. For example, in Streck, Inc. v. Research & Diagnostic Systems, Inc., the court was tasked with determining whether “the plaintiff’s reliance, if any, on the protected documents disclosed in [the] case when pursing disclosure of the same documents in [a separate] interference proceeding constitute[d] a violation of the protective order,” which barred the “use” of confidential information for purposes outside of the litigation. 250 F.R.D. 426, 435 (D. Neb. 2008). Specifically, the defendants in Streck argued that the plaintiff sought certain documents in the separate proceeding “only because of the knowledge gained through exposure to the protected documents in [the Streck] case.” Id. at 434. Even though the plaintiff had referenced the protected documents in the separate proceeding, see id. at 433-34, the court concluded that the defendants’ arguments “strain[ed] the term ‘use,’” as the plaintiff had not disclosed any confidential information from the documents and “was not relying on the materials themselves, but [was instead] attempting to secure their disclosure in the interference proceeding.” Id. at 435. Similarly, a court in the Eastern District of Wisconsin concluded that the plaintiffs had not improperly “used” documents in violation of a protective order even if they had “used knowledge of the existence of such documents” to seek the same documents in an inter partes review (“IPR”) proceeding. Milwaukee Elec. Tool Corp. v. Snap-on Inc., No. 14-cv-1296-JPS, 2016 WL 1719657, at *1, *4 (E.D. Wis. Mar. 16, 2016). In so finding, the court identified “a distinction between the use of knowledge regarding the existence of certain documents versus the use of confidential content within the documents.” Id. at *4. Although the plaintiffs had “used” the Bates numbers Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 8 of 14 9 from certain discovery documents in formulating their IPR discovery request, the court noted that “[t]he Bates numbers in and of themselves are certainly not confidential information,” and the plaintiffs had not “actually used any of the confidential content within those documents” in forming their request. Id. The court concluded that the plaintiffs’ conduct had not violated the protective order barring the use of confidential information or documents outside of the litigation. Id.; cf. Royal Park Invs. SA/NV v. Deutsche Bank Nat’l Tr. Co., 192 F. Supp. 3d 400, 405 (S.D.N.Y. 2016) (concluding that a protective order barring the “use” of discovery documents was not violated where a party “us[ed] their knowledge of what ha[d] been produced . . . to advocate for the production of the same documents, if otherwise discoverable, in a parallel case against a different defendant”); cf. Smith v. Bradley Pizza, Inc., No. 0:17-cv-2032-ECT-KMM, 2019 WL 430851, at *3 (D. Minn. Feb. 4, 2019), aff’d, 821 F. App’x 656 (8th Cir. 2020) (defense counsel “used” confidential information in other proceedings where they shared the confidential documents and information with their other clients). Finally, fairly analogous to the instant matter is High Point SARL v. Sprint Nextel Corp., 280 F.R.D. 586 (D. Kan. 2012). In High Point, a non-party sought a protective order prohibiting the plaintiff from using documents that had been produced by the non-party in the District of Kansas action in separate litigation pending in Japan. 280 F.R.D. at 588. The non-party argued that the plaintiff had “used” the subject documents in subpoenaing documents for the Japanese litigation; specifically, the non-party noted that the plaintiff had requested the non-party’s permission to use the documents in the Japanese case, but that the non-party had declined, and asserted that the plaintiff’s subsequent subpoena application “was undoubtedly based on and motivated by information gathered from [the non-party’s] protected materials.” Id. at 590-91. After thoroughly analyzing applicable case law, the court concluded that although the non-party Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 9 of 14 10 had submitted some circumstantial evidence raising “reasonable suspicions on the source of [the plaintiff’s] knowledge of the existence of” the documents, the court could not definitively conclude that the plaintiff had, in fact, “used” the documents produced by the non-party in requesting the subpoena. Id. at 597. Ultimately, the court determined that accepting the non-party’s arguments “require[d] too much speculation and drawing of inferences from circumstantial evidence.” Id. The Court finds these cases persuasive. Even assuming, without deciding, that Plaintiff is correct that Open used its knowledge of the Protected Materials to submit its CORA request to obtain the same documents covered by the Protective Order, “there is a distinction between the use of knowledge regarding the existence of certain documents versus the use of the confidential content within the documents.” Milwaukee Elec., 2016 WL 1719657, at *4. Like Milwaukee Electric and Streck, the Court concludes that the fact that a party knows that certain documents exist, and uses that knowledge to attempt to seek the disclosure of those documents outside of the litigation, is insufficient to establish that the party “used” those specific documents themselves or the information therein. Id.; Streck, 250 F.R.D. at 435. The plain meaning of the term “use,” in the Court’s view, requires something more than the mere use of one’s knowledge that documents exist, and would instead require the substantive reliance on or utilization of the documents themselves to achieve a specific purpose. Indeed, Black’s Law Dictionary defines the term “use” as “[t]o employ for the accomplishment of a purpose; to avail oneself of.” Use, Black’s Law Dictionary (11th ed. 2019). Even if Open submitted the CORA request based on its knowledge of the Protected Materials, this alone does not amount to an “employ” of those materials or information specifically, and thus, does not amount to the “use” of those protected documents. See Streck, 250 F.R.D. 435 (distinguishing between relying on materials and attempting to secure the Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 10 of 14 11 materials’ disclosure in another proceeding). To hold otherwise would expand the definition of “use” beyond its plain meaning. Entitled to Protection Under the Applicable Legal Principles. The Protective Order also provides that “the protection it affords from public disclosure and use extends only to the limited information or items that are entitle to confidential treatment under the applicable legal principles.” ECF 32 at § 1.1. Open’s reference to Bates numbers corresponding with Protected Materials does not demonstrate that it “used any of the confidential content within those documents” in its CORA request. Milwaukee Elec., 2016 WL 1719657, at *4; cf. Streck, 250 F.R.D. at 435 (the general reference to protected documents was “insufficient” to establish a violation of the protective order). Although the emails from counsel may raise “reasonable suspicions” about the motivations underlying Open’s CORA request, Open’s motivations are not relevant to the Court’s inquiry. Rather, the Court can only determine whether Open’s act of filing the CORA requests definitively constitutes a violation of the Protective Order; based on the record before it, the Court cannot reach such a conclusion. In short, Open has not “used” confidential information within the documents in the CORA request, and, by its plain terms, the Protective Order does not otherwise prohibit any party from making a CORA request.5 In making this ruling, the Court is also mindful that CORA provides a statutory right to request public records, independent of the discovery procedures set forth in the Federal Rules of Civil Procedure. Wick Commc’ns Co. v. Montrose Cnty. Bd. of Cnty. Comm., 81 P.3d 360, 364 (Colo. 2003) (“[T]he general purpose of CORA is to provide open government through disclosure 5 The Court notes that the scope of Open’s CORA request is similar to a request made in Defendants’ first set of discovery requests. Compare ECF 43-10 with ECF 74-4. Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 11 of 14 12 of public records.”). “[I]t would be inappropriate to enter a protective order prohibiting [a party] from gathering information through a means which is independent from the discovery devices employed in this case.” Gulf States Steel of Ala., Inc. v. Sec’y, Dep’t of Lab., No. CIV.1:94-cv- 2760-ODE, 1994 WL 794755, at *1-2 (N.D. Ga. Nov. 16, 1994); Noland v. City of Albuquerque, No. CIV-08-0056 JB LFG, 2009 WL 5217998, at *2 (D.N.M. Oct. 27, 2009) (“The Court will not prohibit [plaintiff] from exercising his right under New Mexico law to make valid requests for public records.”);6 cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33-34 (1984) (“[J]udicial limitations on a party’s ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context.”). While those litigating against the government may not use open-records requests “to circumvent limitations placed on discovery by, for example, obtaining otherwise privileged material,” those requesting information “also are not to be denied equal access to government records.” Horsehead Indus., Inc. v. E.P.A., 999 F. Supp. 59, 67–68 (D.D.C. 1998) (Freedom of Information Act (“FOIA”) case); Guy v. Whitsitt, 469 P.3d 546, 552 (Colo. App. 2020) (“Though not identical, CORA and FOIA share the same purpose.”). 6 The Court questions whether it would even have authority under Rule 26 to restrain Open’s ability to request public records under CORA or disclose those records, given Rule 26(c)’s limitation to discovery conduct. See High Point, 280 F.R.D. at 594 (“The Court’s authority over High Point’s discovery devices is limited to those made in this case”) (emphasis omitted); Hetronic Int’l, Inc. v. Rempe, No. CIV-14-787-C, 2015 WL 13935654, at *2 (W.D. Okla. Apr. 23, 2015) (citing cases suggesting that Rule 26 does not provide a court authority to issue protective orders governing documents obtained outside of discovery). Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 12 of 14 13 In sum, Plaintiff has not met its burden of demonstrating that Open violated the Protective Order in this case.7 For this reason, the Court declines to issue any further protective orders or enter an order requiring Open to comply with the already-in-place Protective Order. III. CORA and the Supremacy Clause Finally, the Court briefly addresses Plaintiff’s request that the Court issue an order holding that “the City’s compliance with the [Protective Order] supersedes any potential liability under CORA, pursuant to the Supremacy Clause which renders the CORA request void.” See ECF 64 at 14. This request arises out of the City’s argument that “pursuant to the Supremacy Clause, this Court’s orders (including the [Protective Order]) supersede those of any state Court on this issue and the City would not be subject to liability under the Colorado statute despite any action by Open to seek court intervention in state court.” Id. The Court declines to issue such an order. “One limitation on the judicial power is the prohibition of advisory opinions, which requires that courts must adjudicate only ‘concrete legal issues, presented in actual cases, not abstractions.’” United States v. Muhtorov, 20 F.4th 558, 607- 08 (10th Cir. 2021) (quoting Golden v. Zwickler, 394 U.S. 103, 108 (1969)). The City’s liability under CORA for denying public inspection of documents, if any, is not at issue before this Court or in this civil action. Indeed, a person challenging the withholding of documents pursuant to CORA must “apply to the [state] district court of the district wherein the record is found for an order directing the custodian of such record to show cause why the custodian should not permit the inspection of such record.” Colo. Rev. Stat. § 24-72-204(5)(a). While Open has informed the City of its intent to bring such a challenge in state court, ECF 64-10, it does not appear that it has 7 In light of this ruling, the Court does not reach Open’s arguments that the documents sought by Open in its CORA request do not fall within the definition of “Protected Material” in the Protective Order. See ECF 74 at 10-11. Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 13 of 14 14 done so yet. See ECF 74 at 7. In any event, the determination of any liability under CORA is appropriately reserved for the state court. If the City believes that the CORA request is void under the Supremacy Clause, see ECF 64 at 14, that the requested records fall within a CORA exception, see id. at 7 (citing Colo. Rev. Stat. §§ 24-72-203(1)(a) and 24-72-204(1)(c)), or that the requested documents are protected by the deliberative process privilege, see id. at 7-8, it may raise those arguments in state court when and if the challenge is initiated and the issue is ripe for adjudication.8 For all of these reasons, the Court does not find it necessary to issue any additional protective orders at this time. The Motion for Protective Order is denied. CONCLUSION For the reasons set forth herein, IT IS ORDERED that: (1) Plaintiff City of Fort Collins’s Motion for Protective Order to Require Defendants’ Compliance with the October 14, 2021 Stipulated Protective Order [filed June 17, 2022; ECF 64] is DENIED. Entered and dated at Denver, Colorado, this 16th day of August, 2022. BY THE COURT: _________________________ Michael E. Hegarty United States Magistrate Judge 8 This Court’s order is specifically limited to a determination that Open’s CORA request did not constitute “use” of Protected Materials as defined in the Protective Order. The Court does not pass on the validity of the CORA request or whether the materials requested in the CORA request fall within the Protective Order and/or are subject to any CORA exception. Case 1:21-cv-02063-CNS-MEH Document 99 Filed 08/16/22 USDC Colorado Page 14 of 14